Thursday, July 26, 2012

In the case of In re Smith, 442 B.R. 550 (Bkrtcy. S.D.Tex. 2010), the bankruptcy court addressed (i)whether Bankruptcy Code § 542(c) applies to a consolidated loan and, (ii) whether it is too late, after execution of a consolidation loan, to determine “undue hardship” under § 523(a)(8). In Smith, debtor borrowed money to send her daughter to Austin Business College for an Associates Degree in Business Technology. That degree has not enabled her daughter, a single mother, to get a job that would support debtor’s daughter and debtor’s grandchild. Debtor's daughter lives in debtor's home and works at Walmart. In 2005, debtor filed a voluntary Chapter 7 bankruptcy petition, but instead of seeking to discharge the student loan debt, debtor attempted to combine the three existing loans into a single loan for ease of payment. Debtor did not seek discharge of the consolidated loan while her bankruptcy case was pending or for several years afterwards. Instead, she tried to pay the loan. Debtor now alleges that she is unable to pay the consolidated student loan, and filed this case seeking a court ruling that the student loan is dischargeable.

The court ruled in favor of the debtor. The court began its analysis by asking whether the consolidated loan was a new loan. The creditor argued that the consolidated loan was a new loan and therefore could not be discharged because it was a post-petition debt. The court found against the creditor on this issue, and held that the consolidated loan was nothing more than a “reaffirmation agreement.”The consideration for the consolidated loan predated the current bankruptcy case. Because no additional advances were made, no new lender advanced funds to pay off the prepetition lender, and no material modifications were made to the loan, the court held that there was no reason to treat the new note as a “loan made.” “The financial effect of a bookkeeping entry on Wells Fargo’s books is not the creation of a new loan, it is a bookkeeping entry that (in this case) has no effect to make the loan dischargeable. Treating this bookkeeping entry as a new loan would elevate form over substance.”

The court then turned its attention to whether a prior discharge under Chapter 7 bars a subsequent determination of dischargeability under § 523(a)(8). Under FED. RULE BANKR.P. 4007(b), a pre-petition student loan is not automatically discharged, but there is no deadline for seeking a determination that § 523(a)(8) applies, and there is no deadline to discharging the debt after the bankruptcy case is closed. “Both the Seventh and Second Circuits have held that debtors are permitted to reopen their cases to seek a discharge of their student loans based on a post-discharge change in circumstances.” In re Walker, 427 B.R. 471, 480 (8th Cir. BAP Minn., 2010).

In this case, debtor testified that she is able to pay her bills as they come due, however, she can only do so by regularly postponing other necessary expenses, such as medical care, home repairs, and car repairs. Also, as a result of debtor's age (56 years old), her income will decline when she reaches retirement. Based on these facts, the court concluded that debtor's financial condition would only worsen over time. Based on facts related to a finding of “undue hardship,” the court concluded that debtor's post-discharge change in circumstances permitted her to reopen her case and seek a discharge of her student loan debt. The court ruled in favor of the debtor and found “undue hardship.”

Apply the law to the facts, the Smith court held to prove that the discharge of student loan debt under 523(a)(8) is possible…albeit, the court construed this case through a very narrow lens, focusing on debtor's extreme financial hardships and low quality of life. However, this case is a twinkle of the “light that’s at the end of the tunnel” for those debtors with extreme circumstances who are deserving of student loan debt discharge.
Sincerely,

In the case of In Re Ayele, 468 B.R. 24 (Bkrtcy.D.Mass. 2012), the bankruptcy court addressed whether debtor was entitled to “undue hardship” discharge of his roughly $30,000 in student loan debt. The court ruled that the debtor was not entitled to undue hardship discharge of his debt, but the court, in exercise of its equitable authority to enter “necessary or appropriate” orders, entered an order discharging any student loan debt which debtor was unable to repay following his participation in the Income Contingent Repayment Plan (ICRP) or income-based repayment (IBR) program.

Rule

The Bankruptcy Code prohibits the discharge of student loan debts “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8). There is a split amongst the courts on the proper test to apply in determining whether the debtor has satisfied the undue hardship burden. The Brunner Test is a three-part test which requires the debtor to prove: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans, (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2nd Cir.1987). Other courts have adopted “the totality of the circumstances test” which requires the court to consider: (1) the debtor’s past, present, and reasonably reliable future financial resources, (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses, and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Long v. Educ. Credit Mgmt. Corp., 322 F.3d 549, 554 (8th Cir.2003). The Court in this case adopted “the totality of the circumstances test” because it opined the Brunner test to be too expansive.

Facts

A. The William D. Ford Direct Loan Program

Prior to the commencement of this case, the court took notice of the William D. Ford Direct Loan Program (the “Ford Program”), which was enacted by Congress pursuant to 20 U.S.C. § 1087a et seq., and is contained within the Code of Federal Regulations, see 34 C.F.R. §§ 685.100 through 685.402. The Ford Program provides for student loan consolidation under the guaranteed student loan program, and an income contingent repayment plan (“ICR Plan”). In addition to ICR Plans, student loan borrowers may be eligible for an Income-Based Repayment program (the “IBR program”) as part of the Ford Program. An understanding of the Ford Program helps to facilitate a complete legal analysis of the Court’s opinion in this case.

Under the ICR Plan, the monthly payment amount is calculated as the lesser of: (a) the amount that would be paid if the borrower repaid the loan in 12 years, multiplied by an annual income percentage factor that varies based upon the borrower’s annual income; or (b) 20% of the borrower’s discretionary income, which is defined as the borrowers adjusted gross income (“AGI”) minus the poverty level for the borrower’s family size.

The IBR Program is part of the College Cost Reduction and Access Act of 2007. Under the IBR Program, the amount an eligible borrower would repay each month under the IBR is based on the Borrower’s AGI and family size. The annual IBR repayment amount is 15% of the difference between the borrower’s AGI and 150% of the Federal HHS Poverty Guidelines, adjusted for family size. That amount is then divided by 12 to get the monthly IBR repayment amount. If that amount is higher than the 10-year standard repayment amount on the borrower’s loans, then the borrower’s required payment is the standard amount. The repayment amount under a 10-year standard plan is calculated based upon the total.

B. Stipulated Facts and the Debtor’s Testimony

Debtor, a native Ethiopian, is 53 years old, divorced, and has no minor children. He filed a Chapter 7 petition in 2010 and listed unsecured creditors holding claims totaling $34,867.91, including Educational Credit Management Corporation (“ECMC”) with a claim totaling $29,925.42.

Debtor has acquired several degrees from various American educational institutions. He received: (1) Associate Degree in Business administration from South Central Community College in New Haven, Connecticut, (2) a Bachelor of Science Degree from Southern Connecticut State University in New Haven, Connecticut, (3) a Masters of Science Degree in Administrative studies from Boston University.

Throughout his adult life, debtor has only held hourly wage jobs, earning no more than nine to ten dollars per hour. Although debtor does not keep records of his expenses, debtor set forth monthly expenses totaling $1,062. In addition to typical monthly expenses, debtor also sends money to his sister to support her and her family in Africa. At the time of this case, debtor has collected unemployment payments of $700 per month for the past nine months. In spite of his unemployment, debtor testified that he has sent out over 600 resumes and job applications in his attempt to find employment suited to his educational level. He testified that his inability to secure employment is due to his accent and racism.

Debtor testified that he will no longer accept employment as a per hour wage earner. He explained that if he accepted such employment “life will never change.” He also testified that he did not apply for a federal loan consolidation through the Ford Program, because he “wanted the Judge to decide the case based on his economic status.”

Debtor contends that repayment of his student loan debts would present an undue hardship because he cannot afford to repay the debt, and he is unlikely able to repay it in the foreseeable future. ECMC argued that debtor failed to sustain his burden, and that he failed to show that his future prospects are bleak enough to warrant the discharge of his student loan debt.

Holding

Ultimately, the court found that debtor introduced evidence to suggest hardship; however, debtor did not submit evidence to permit a finding of undue hardship. The court ruled in favor of ECMC holding that debtor was not entitled to undue hardship discharge of his student loan debt. The court found dispositive that due to his advanced degrees the debtor would eventually obtain employment, and that despite his eligibility he did not participate in an ICR Plan or IBR program. However, the court exercised its equitable authority discharging any student loan debt which debtor was unable to repay following his participation in the ICRP Plan or IBR program so as to avoid a negative tax consequences (arising from the negative amortization of the debt over time when payments are not made and the tax implications arising after the debt is cancelled).

Like Hedlund v. Educational Resources Institute, Inc., 468 B.R. 901 (D.Or. 2012), this case demonstrates the discretionary authority of the courts in applying the Brunner "undue hardship" test. In this case, the court found that the second prong of Brunner test had not been met; predominantly the fact that due to debtor's advanced degrees it was likely that he would obtain future employment.

Thursday, July 19, 2012

In the Case of Hedlund v. Educational Resources Institute, Inc., 468 B.R. 901 (D.Or. 2012) the court addressed whether debtor was entitled to a partial "undue hardship" discharge of his approximately $85,000 in student loan debt. The bankruptcy court granted the student loan discharge, but the Ninth Circuit reversed the bankruptcy court's decision.

Debtor obtained a bachelors of science degree in business administration from the University of Oregon and a law degree from Willamette University. Debtor financed law school by obtaining federal Stafford student loans totaling $85,245.87. Debtor's father and brother are attorneys in Klamath Falls, Oregon, where debtor resides. After graduating from law school, debtor obtained a position with the District Attorney's office in Klamath Falls. Debtor planned on staying at the District Attorney's office for a couple of years, after which time he would then work at his father's law firm. Debtor, however, was unable to pass the bar exam despite sitting for it twice (once in 1997, and again in 1998), and failing to make it to the exam on exam day the third time (in 1999). As of the time the case was filed, debtor had no plans to retake the exam.

Because debtor was unable to practice law, he filed for and received several extensions of his loan obligation. In 1999, debtor's loans went into repayment status, at which time debtor submitted an application for loan consolidation. Because debtor fell behind on his payments under the loan consolidation, debtor was unable to re-apply for consolidation. Debtor chose not to apply for the William D. Ford Income Contingent Repayment Program because he believed that he did not qualify for it.

In 1999, debtor obtained a job as a juvenile counselor at the Klamath County Juvenile Department. Although debtor worked full-time, he did not make the requisite monthly loan payments. In fact, debtor made only one payment on his debt prior to filing for bankruptcy; in September 1999, debtor advanced $954.72 to the creditor using the proceeds of a $5,000 inheritance. Subsequently, debtor made a one-time payment offer to creditor of $5,000 in exchange for more favorable loan terms and waiver of certain assessed fees; creditor declined his offer.

In 2000, debtor got married, and in 2001, debtor and his wife had their first child. Debtor's wife works at a flower shop one day per week for six hours, earning $8.50 per hour. Debtor's wife has the potential to work more, but instead chooses to stay at home with their child.

After two years of nonpayment, the creditor administratively began to garnished debtor's wages. The following year, a second student loan creditor also began to garnish wages from debtor's bank account. Unable to simultaneously manage both garnishments, debtor filed a petition for relief under Chapter 7 of the bankruptcy Code. At that time, debtor was thirty-three years old, married, with one dependent child; he was healthy, had no physical disabilities, and had no drug or alcohol addictions. His annual income was $40,320.

The court began its analysis by applying the three-part Brunner test. Under Brunner, a debtor must prove that: 1) he cannot maintain, based on current income and expenses, a "minimal" standard of living for himself and his dependents if required to repay the loans; 2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and 3) the debtor has made good faith efforts to repay the loans. See United Student Aid Funds, Inc. v. Pena (In re Pena), 155 F.3d 1108, 1111-12 (9th Cir. 1998) (adopting the Brunner test).

On appeal from the bankruptcy court, the 9th Circuit independently reviews findings of fact for clear error, while conclusions of law are reviewed de novo. Schwarzkopf v. Briones (In re Schwarzkopf), 626 F.3d 1032, 1035 (9th Cir.2010). Mixed questions of law and fact, such as the proper application of legal standard in determining whether a student loan is dischargeable, are also reviewed de novo. Educ. Credit Mgmt. Corp. v. DeGroot, 339 B.R. 201, 214-15 (Bankr.D.Or.2006).

A. Minimal Standard of Living

The first prong of the Brunner Test requires the debtor to establish that he could not maintain, based on his current income and expenses, a minimal standard of living if he were required to repay the creditor. More than "simply tight finances" and "temporary financial adversity" must be demonstrated; however, a showing of "utter hopelessness" is not required. Rifino, 245 F.3d at 1088. Determining what constitutes a minimal standard of living for each individual debtor requires a case-by-case assessment. The applicable test is whether it would be unconscionable to require the debtor to take steps to earn more income or reduce his expenses in order to make payments under a given repayment schedule. Carnduff v. U.S. Dep't of Educ. (In re Carnduff), 367 B.R. 120. 127 (9th Cir. BAP 2007).

Analyzing the first element, the bankruptcy court determined that debtor had maximized his income, and that it would be unconscionable to require him to work more than forty hours per week. However, the bankruptcy court determined that it would not be unconscionable to require the debtor's wife to work more days per week, especially given the availability of free child care from the grandparents. The court also found that debtor could reduce his monthly expenses by slightly abating his monthly expenses for recreation, clothing, and child care budgets. After factoring in these adjustments, the court concluded that the debtor's monthly surplus was insufficient to make the requisite monthly loan payments. Consequently, the bankruptcy court found that debtor satisfied the first prong of the Brunner test. The Ninth Circuit could not find that the bankruptcy court committed clear error when applying the first prong of the Brunner test.

B. Additional Circumstances

The second prong of the Brunner test requires the debtor to prove that "additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans." The court must "presume that the debtor's income will increase to a point where he can make payments and maintain a minimal standard of living; however, the debtor may rebut that presumption" by introducing evidence "indicating that his income cannot reasonably be expected to increase and that his inability to make payments will likely persist." Educ. Credit Mgmt. Corp. v. Nys (In re Nys), 446 F.3d 938, 95 (9th Cir.2006). The bankruptcy court found that debtor's lack of admission to the bar, his inability to substantially increase his income over the loan repayment period (because he maximized his income in his position, and the closest promotion was eight years away), the absence of current assets, and likelihood that expenses will increase over time because he wants to have more children, were additional circumstances proving that debtor's current financial position is likely to persist for a significant portion of the repayment period. The Ninth Circuit found that the bankruptcy court did not err in regard to the second prong of the Brunner test.

C. Good Faith

The third prong of the Brunner test requires the debtor to affirmatively demonstrate a good faith effort to repay student loans. To do this, the court analyzed a number of factors, including the debtor's efforts to obtain employment, maximize income, minimize expenses, and to negotiate an alternative repayment plan, as well as his history of voluntary payments.

The court begins its analysis of this prong of the Brunner test by acknowledging the bleak circumstances faced by the majority of today's law school graduates. However, the Court found that the debtor's case is distinguishable. The debtor graduated in 1997, a period of great prosperity and rapid economic growth for the United States. Even though debtor was unable to pass the bar exam, he was able to obtain a relatively high-paying job. Moreover, debtor and his wife chose to be a single-income family, which is a lifestyle that few today can afford, especially when free child care is available. Therefore, the court determined that the debtor's financial circumstances are, in part, a by-product of his life choices rather than market forces.

However, the court noted that a more dispositive factor was that the debtor did not meet his burden of proof in showing an affirmative demonstration of good faith. Debtor not only neglected to maximize his income, minimize his living expenses, and make voluntary payments, but he also failed to take any steps toward renegotiating an alternative repayment plan. The court determined that these factors were not beyond his reasonable control. Consequently, the Ninth Circuit found that the bankruptcy court erred as a matter of law in finding that debtor met the third Brunner Prong.

Because the debtor failed to prove the third prong of the Brunner test, the bankruptcy court's order discharging debtor's student loan debt was reversed, and debtor was required to pay off the full debt in the amount of $ 85,245.87.

Sunday, May 9, 2010

Cassim v. Educational Credit Management Corporation, 594 F.3d 432 (6th Cir. 2010). A chapter 13 debtor filed an adversary complaint seeking a determination that because of debtor’s disability debtor was entitled to an “undue hardship” discharge of debtor’s student loans. Debtor asserted that debtor’s student loan debts should be discharged when the bankruptcy court enters the general discharge order following completion of the chapter 13 repayment plan.

The student loan creditor sought to dismiss the adversary complaint on constitutional ripeness grounds. Creditor argued that the student loan debtor would have to wait for the entry of the chapter 13 discharge order before the debtor could file the adversary proceeding. Creditor believed a ruling prior to discharge was simply premature.

The Sixth Circuit framed the issue as whether a bankruptcy court ruling on the undue hardship discharge issue was constitutionally ripe for adjudication prior to the entry of a chapter 13 general discharge that would be entered years later, if ever, and only at the conclusion of the chapter 13 repayment plan. The Circuit Courts are split on this issue and are without Supreme Court guidance.

The Sixth Circuit found that the question of whether debtor’s student loan debt is dischargeable was constitutionally ripe for review by the bankruptcy court despite the fact that debtor had not yet received a chapter 13 general discharge under Section 1328. The court noted that debtor sought to discharge her student loan obligations under Section 523(a)(8) and creditor sought to prevent debtor from obtaining such relief. If debtor prevailed, the student loan creditor stood to lose some or all of its claim. The court therefore believed that the dispute involved a specifically-defined debt and a statutorily-based claim for relief that debtor was entitled to pursue. Consequently, the court found that the collision of these opposing interests produced a definite and substantial controversy between the parties that was currently ripe for adjudication, and not merely an abstract disagreement.

Saturday, May 8, 2010

Student loan dischargeability is a hot issue. A court recently addressed the issue of whether the circumstances causing "undue hardship" must occur prior to the underlying chapter 7 discharge.

In Zygarewicz v. Educational Credit Management, 423 B.R. 909 (Bankr. E.D. Cal. 2010), a chapter 7 debtor filed bankruptcy and received a discharge of all dischargeable debts. However, one of the debts not discharged was debtor’s student loan debt. The student loan debt was not discharged because debtor could not demonstrate that repayment of the student loans would cause an undue hardship.

Two years later debtor’s situation changed for the worst. Debtor suffered a severe injury in a vehicle accident. Debtor then believed debtor would be able to prove that repayment of the student loans would cause an undue hardship. Debtor reopened the bankruptcy case and filed an adversary proceeding against the student loan creditor seeking a ruling that the student loan debt is discharged.

The student loan creditor objected to the discharge because the event causing debtor’s hardship arose years AFTER the discharge order had been entered. The bankruptcy court agreed and entered judgment in favor of the creditor. The court concluded that the circumstances causing a chapter 7 debtor’s financial hardship must arise PRIOR to the entry of the discharge order. Here, the court believed that debtor’s circumstances could not form the basis of a determination that repayment of the student loan would be an undue hardship since the circumstances causing debtor’s hardship (the vehicle accident) arose after the entry of the discharge.

Debtor should consider refiling a new bankruptcy case and attacking the student loan debt within the new bankruptcy case. Contact me if you have questions.

Thursday, January 21, 2010

In the case of In re Coco, 335 Fed. Appx. 224 (3rd Cir. 2009), a chapter 7 debtor brought an adversary proceeding against the student loan creditor, seeking determination that her student loan debt was not excepted from discharge.
The bankruptcy court granted summary judgment against the student loan debtor, finding there were no material issues of fact and that the student loan creditor was entitled to judgment as a matter of law. The bankruptcy court held that the debtor failed to establish undue hardship and was thus not entitled to a discharge of the student loan debt.
The student loan debtor appealed the bankruptcy court’s decision. The court of appeals held that factual issues as to whether debtor made good-faith efforts to repay her student loans precluded summary judgment for creditor. The bankruptcy court’s judgment was vacated.
The student loan debtor will get her trial to prove that she made good-faith efforts to repay her student loan.

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Friday, January 1, 2010

In Barrett v. Great Lakes, 417 B.R. 471 (Bankr. N.D.OH 2009), debtor filed chapter 7 bankruptcy in 2005. The next year debtor brought an adversary proceeding seeking an order determining the dischargeability of debtor’s student loans on “undue hardship” grounds. The original student loan creditor moved to dismiss the adversary complaint alleging that debtor’s prepetition student loan debt was paid postpetition when debtor consolidated various prepetition loans into a new loan made postpetition. The new student loan creditor who funded the consolidated loan supported the position of the original student loan creditor and maintained that the consolidation of debtor’s student loan debt created a new postpetition obligation which could not have been discharged by the underlying chapter 7 discharge.

The facts in this case were not in dispute. After receiving the chapter 7 discharge, debtor entered into a consolidated loan agreement with a new student loan creditor. The consolidation agreement was made pursuant to the Federal Family Education Loan Program, known by its acronym FFELP. Under this agreement, debtor was able to consolidate a number of loans debtor incurred prepetition to finance debtor’s higher education.

The court granted the creditor’s motion to dismiss after holding that the consolidated debt incurred postpetition could not be discharged via the adversary proceeding. The court believed that the consolidated debt arose after the commencement of the debtor’s chapter 7 case and therefore could not be subject to discharge. The court reaffirmed the well-settled fact that a debt must have been in existence prior to the commencement of the bankruptcy case in order for the debt to be encompassed within the scope of a court’s discharge order. In the instant case, the court noted that the consolidated loan was made pursuant to the Federal Family Education Loan Program as governed by 20 U.S.C. §1078-3. Under that statute a consolidation loan is considered a “new loan” and the statute provided that liability upon the initial loan is discharged upon consolidation into a new loan. Therefore, the court found that where student loans are consolidated postpetition, the consolidated debt is deemed to have arisen after the commencement of the bankruptcy case and thus excluded from discharge.

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

In the case of Scott v. US Department of Education, 417 B.R. 623 (Bankr. W.D.Wash. 2009), chapter 7 debtors filed an adversary proceeding seeking an order determining that debtors were entitled to “undue hardship” discharge of their more than $322,000 in student loan debt. After an evidentiary hearing, the court found that the repayment of the student loan debts would indeed cause debtors an “undue hardship” and thus debtors were entitled to discharge the student loan debts.

Debtors were married, less than 34 years of age, and were parents to two healthy young children. Both debtors worked and earned a combined annual income in excess of $90,000. Debtors testified that both had consistent work histories since completing their education. Debtors also testified that they do not have opportunities to increase their income in the future.

Debtors’ monthly expenses exceeded their monthly income by approximately $1,000 monthly. Debtors’ rent payment was a modest amount and the day care expenses for both children were expensive. Debtors’ only excessive debt related to an approximately $500 vehicle payment. Other than that, debtors had lived frugally and had made reasonable choices about their expenses.

Debtors’ loan repayment history favored debtors’ position. Debtors made as many as 72 payments on one of the loans and previously received multiple student loan extensions, deferments, and forbearances during their efforts to repay the student loan debts.

The Scott court adopted the three-part dischargeability test set forth in In re Brunner, 46 B.R. 752 (S.D.N.Y. 1985), to determine whether excepting the student loan debts from discharge would constitute an undue hardship on debtors. The Scott court found that debtors proved that they could not, based on their current income and expenses, maintain a “minimal” standard of living for themselves and their dependents if forced to repay the loans. Next, the court found that debtors demonstrated their inability to pay the student loans in the present and a likely inability to pay the student loans in the future. Finally, the court found that debtors had made good faith efforts to repay the student loans after considering the number of student loan payments made, the dollar amount of student loan payments made, and debtors’ efforts to receive multiple student loan extensions, deferments, and forbearances.

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

Thursday, December 3, 2009

Student loan debts are dischargeable under limited circumstances. The National Law Journal is reporting on a bankruptcy case that had originally granted the discharge of student loan debt, but was later reversed by the district court. It's an interesting article written by Leigh Jones. Here is the article:

"When she graduated four years ago with a law degree at the age of 61, Denise Megan Bronsdon likely did not foresee bankruptcy court in her future. But that's where she ended up -- as a debtor.

The former farmer's wife who operated a tractor before going to Southern New England School of Law in 2002, convinced a Massachusetts bankruptcy court in January that repaying the more than $82,000 she owed in student debt would create an undue hardship. However, the U.S. District Court in Massachusetts, considering an appeal by the lender, Educational Credit Management Corp., found on Nov. 20 that Bronsdon's decision not to participate in a loan repayment assistance program should be part of the bankruptcy court's undue hardship analysis.

Bronsdon, who represented herself, filed for bankruptcy after she could not get a job following her graduation in 2005 from the Dartmouth, Mass., law school. Although she graduated in the top half of her class, she failed the Wisconsin bar exam three times and was unable to pay for test preparation materials and to take the exam again.

Reached by phone, Bronsdon declined to answer questions about the case.

Bronsdon, who worked temporarily as a legal secretary and receptionist, had continually interviewed for full-time work after graduation without success, the Nov. 20 opinion said. She also wrote a novel but was unable to find a publisher. At the time of trial, she was 64 years old and unmarried, with a monthly income of $946 from Social Security.

The district court determined that the bankruptcy court was correct in finding that she was unlikely to obtain paid employment in the foreseeable future, which would make repaying her debt unduly burdensome. However, the district court also found that the bankruptcy court was incorrect in reaching that conclusion without considering her decision not to participate in the William D. Ford Direct Loan Program's Income Contingent Repayment plan available to law school graduates.

Specifically, the district court found that the bankruptcy court erred when it concluded that the loan assistance program was not part of the analysis because it would have resulted in a tax liability that "could leave her in a financial state much more desperate than the one she was currently enduring."

The district court vacated the bankruptcy court's decision and directed it to consider the repayment program in its undue hardship analysis.

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.

Wednesday, November 11, 2009

I am frequently asked if student loan debt is dischargeable in bankruptcy. Many non-bankruptcy lawyers believe that the bankruptcy laws had been changed so that student loan is no longer dischargeable by filing bankruptcy. That is not true. Although Congress may have made it more difficult to eliminate student loan debt, discharging student loan debt in bankruptcy is not impossible.

I read a very interesting opinion that was rendered by a Minnesota bankruptcy judge that discharged over $310,000 of student loan debt from a person who had completed college, medical school, and graduate school... and was healthy... and married... to a husband who made over $67,000 annually!!!!
So, there is hope for other people who owe student loan debt and cannot afford to repay it. Please contact me to discuss this case and other issues relating to the elimination of student loan debt or see my website at http://www.schallerlawfirm.com/student_loan_discharge.html . Below is a summary of the case to which I referred.

In re Walker v. Sallie Mae Servicing, 406 B.R. 840 (Bankr. D. Minn. 2009). Debtor discharged over $310,000 of student loan debt that she incurred while earning a bachelor’s degree at the University of Illinois, a medical degree at University of Illinois College of Medicine, and a master’s degree at Governors State University. Debtor was healthy and able to work, but stayed home to rear five children. Debtor’s husband held a full-time job as a policeman and a part-time job as a security officer. Debtor’s approximate household income was $67,000 annually.

In addition, within a year of filing the adversary proceeding to discharge the student loan debt, debtor’s spouse purchased a $40,000 new vehicle by incurring a vehicle loan with a monthly payment obligation of $850. Plus, debtor’s spouse signed a $50,000 second mortgage to build a 22-foot deck off their home with a monthly payment obligation of $372.

Nevertheless, the bankruptcy court rejected the objections to discharge argued by the student loan creditors, finding that debtor had provided sufficient evidence that the repayment of the student loan debt would have been an “undue hardship” on debtor and debtor’s dependents. The Walker Court applied the 8th Circuit’s “totality-of-the-circumstances” test. The court made note that the health of debtor’s twin approximately 9-year old sons was a major factor in its decision. The twins suffered with a form of child autism and were receiving intensive therapy offered by the state government for children with autism.

Surprising, the court allowed the discharge finding that the debtor had overcome debtor’s burden of proving “undue hardship” without calling an expert witnesses for an opinion as to the sons’ status and prognosis from the perspective of medicine/psychology or education. Nevertheless, the $310,000 student loan debt was discharged.

NOTE: Robert Schaller looks forward to the opportunity to talk with you about your legal issues. But please remember that all information on this blog is for advertising and general informational purposes only. Please read Bob's disclaimer.